ACIT CC 3(4) CEN RG 3, MUMBAI vs. SAMIR NARIAN BHOJWANI, MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI AMARJIT SINGH, JM आयकर अपील सं/ I.T.A. No.331/Mum/2015 (निर्धारण वर्ा / Assessment Year: 2009-10) बिधम/ ACIT-CC-3(4) Central Shri Samir Narain Bhojwani 1st Floor, Samir Complex, St. Range-3 Vs. Andrews Road, Opp, Holy Room No. 401, 4th Floor, Family Hospital, Bandra Aayakar Bhavan, Mumbai- (W), Mumbai-400050. 400020. CO. No.134/Mum/2016 (Arising out of ITA. No. 331/Mum/2015) (निर्धारण वर्ा / Assessment Year: 2009-10) बिधम/ Shri Samir Narain Bhojwani ACIT-CC-24 & 26 1st Floor, Samir Complex, St. Room No. 401, 4th Floor, Vs. Andrews Road, Opp, Holy Aayakar Bhavan, Mumbai- Family Hospital, Bandra 400020. (W), Mumbai-400050. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. :AABPB9150H (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) आयकर अपील सं/ I.T.A. No.6807/Mum/2014 (निर्धारण वर्ा / Assessment Year: 2010-11) बिधम/ ACIT CC-24 & 26 Central Shri Samir Narain Bhojwani 1st Floor, Samir Complex, St. Range-5 Vs. Andrews Road, Opp. Holy Room No.404, 4th Floor Family Hospital, Bandra Aayakar Bhavan, Mumbai- (W), Mumbai-400050. 400020. CO. No.41/Mum/2016 (Arising out of ITA. No. 6153/Mum/2014) (निर्धारण वर्ा / Assessment Year: 2009-10) बिधम/ Shri Samir Narain Bhojwani ACIT CC-24 & 26 Central 1st Floor, Samir Complex, St. Range-5 Vs. Andrews Road, Opp. Holy Room No.404, 4th Floor Family Hospital, Bandra Aayakar Bhavan, Mumbai-

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(W), Mumbai-400050 400020. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AABPB9150H (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) Revenue by: Shri R. Manjunatha Assessee by: Shri Yogesh Thar सुनवाई की तारीख / Date of Hearing: 19.07.2018 घोषणा की तारीख /Date of Pronouncement: 12.10.2018 आदेश / O R D E R PER AMARJIT SINGH, JM: The above mentioned appeals and cross-objection filed by the Revenue as well as Assessee against the different order passed by the Commissioner of Income Tax (Appeals)-39, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2009-10 & 2010-11. Since the common question of law and facts are involved in the said appeals, therefore, these appeals are being taken up together for adjudication. ITA. NO.331/M/2015:- 2. The revenue has filed the present appeal against the order dated 01.10.2014 passed by the Commissioner of Income Tax (Appeals)-39, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2009- 10. 3. The Revenue has raised the following grounds: - (1). Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in assessing the ITA. No.331/M/2015 & 6807M/2014 CO. No. 134 & 41/M/2016 A.Y. 2009-10 &2010-11

license fees under the head “Profits and gains of business or profession” and not “ Income from House Property. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in disallowing the claim of depreciation on the actual cost/WDV of the residential houses constructed or purchased which constitute capital assets of the business. 3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in disallowing of purchases of Rs.47,93,324/- from M/s. AR Enterprises and M/s. Archon Ready Mix Concreate Pvt. Ltd. even though the identity, genuineness & creditworthiness of the parties were not proved.” 4. The brief facts of the case are that the search operation u/s 132 of the I.T. Act, 1961 was conducted on 30.11.2010 at the residential/business premises of Samir Bhojwani group of cases. The assessee was inter alia covered in the search operations. Notice u/s 153A of the Act dated 14.11.2011 was issued and served upon assessee. In response to the notice, the assessee filed the return of income for the A.Y. 2009-10 on 06.03.2012 declaring total loss of Rs.11,97,37,220/- . In the earlier return filed u/s 139(1) of the Act on 29.9.2009 also, the assessee had declared total loss to the tune of Rs.11,97,37,220/-. Notices u/s 143(2) and 142(1) of the Act were issued and served upon the assessee. The assessee is a builder, developer, investor, financer and also engaged in letting out of flats for license fees. On verification, it was found that the assessee has shown the income earned from letting out of flat as business income under the narration ‘leave and License Income”. The flats were given on rent under the nomenclature ‘Leave and License Agreement” for rent i.e. the rent was charged for rent of flats and furniture and fixtures. There was no bifurcation

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of the rent charged for furniture and fixture. The assessee has shown the income in different years tabulated below.: -

S. Name and address of A.Y. Income (in Rs.) Expenditure assessee (in Rs.) No.

Sh. Samir N. Bhojwani, 1st Floor, 1 2005- License fee (Rent) 17,69,64,301 Samir Complex, St. Andrews 10,75,98,984 Road, Opp. Holy Family Hospital, Other rental incomes 06 Bandra (W) Mumbai-400050 26,90,092 Profit on sale of flats 12,30,27,447 FSI income 1,44,000 Interest income 1,12,35,489 Prov. Written back 14,57,681 Non-refundable deposit 25,00,000 Total Income Rs.24,86,53,693 2 2006- License fee (Rent) 23,87,16,297 14,42,93,753 Other rental incomes 07 10,16485 Profit on sale of flats 18,32,55,032 FSI income 1,44,000 Interest income 1,21,15,965 Misc. Income 4,14,371 Total Income Rs.34,12,39,606

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3 2007- License fee (rent) 29,98,17,156 20,30,00,080 08 Other rental incomes 5,82,464 Profit on sale of flats 6,95,98,442 FSI income 1,44,000 Interest income 64,48,533 Rent no longer payable 23,333 Total income Rs.27,97,96,852

2008- License fee (rent) 40,88,92,996 4 26,14,51,598 09 Other rental incomes 2,72,523 Profit on sale of flats 3,84,60,350 FSI income 1,44,000 Interest income 84,12,179 Rent no longer payable 23,333 Total income Rs.30,87,40,650

2009- License fee (Rent) 50,61,26,857 35,14,47,719 10 Other rental incomes 2,46,678 FSI income 1,44,000 Interest income 2,48,05,755 Total income Rs.37,66,44,152 2010- License fee (rent) 44,94,44,709 36,56,96,050 11 Other rental incomes 48,681 Sales of Garage 13,00,000 Profit on sale of flats 15,58,17,677 FSI income 1,44,000 Interest no longer payable 32,96,195 Interest income 2,15,07,787 Dividend 4,803

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Total Income 54,78,15,193

2011- License fee (rent) 45,11,50,724 31,50,17,947 12 Other rental incomes 16,326 Profit on sale of flats 9,10,83,598 FSI income 1,44,000 Interest no longer payable 24,658 Interest income 5,18,47,670 Service Tax (Net 3,03,491 Pre-payment charges refund 24.62.819 Property tax written back 63,82,816 Total Income 46,72,83,325/- The notice was given and after considering the reply, the rental income for assessment year was assessed as income from house property and the loss income to the tune of Rs.11,97,37,220/- was assessed. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who allowed the claim of the assessee and treated the income as income from business. Feeling aggrieved, the revenue has filed the present appeal before us.

ISSUE NOs. 1 & 2:-

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on account of rent of flats is the income of house property. The assessee was not satisfied, therefore, filed an appeal before the CIT(A) who treated the rental income of the assessee as income from business and profession. The revenue has filed the present appeal before us. The assessee is a builder, developer, investor, financer and also engaged in letting out of flats for license fees. How the CIT(A) has arrived at this conclusion that the rental income of the assessee is the income of business and profession is required to be seen. The relevant finding is hereby mentioned below.:-

“7.1. The appellant has raised various submissions/contentions in this regard. Accordingly, to the appellant such income is chargeable under the head “Profits and gains of Business or Profession” as has been returned by him and the same has been consistently assessed since several years, year after year, all the assessments being under 143(3) of the Act, since the commencement of the activity (under this head). The appellant costructs buildings which have residential flats. The residential flats in the buildings so constructed by him are let out on leave and licence basis to top executives of multinational companies / corporates. The flats so let, it is submitted, are furnished to the specifications of the licensee. Substantial expenditure is incurred on furnishing the basis to the specifications of the licensees. It is stated that flats are provided with wardrobe kitchen cabinets, beds, mattresses, bed sheets, curtains, air-conditioners, refrigerators, television sets, telephone connections, internet connections, washing machines, music systems, cooking ranges, dish washers, etc. The Hats are furnished and white goods provided as per the specifications of the licensee. Even Jacuzzi is provided, in the flats, wherever it is required by the licensee, it is submitted that the buildings in which the flats are situated have various facilities like swimming pool, fully equipped gymnasium, etc. It is submitted that the appellant also provides various services like services of a carpenter, plumber, mason, gardener, housekeeping, a swimming pool instructor, a gymnasium instructor, valet parking, errand boy, reading room with latest magazines in the lobby, liftmen round the clock, security personnel round the clock, etc. A composite license fee is charged for the letting of the flat as well as the furniture,

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fixtures and also for various services, facilities and amenities provided by the appellant,' 7.2. It is pointed out by the appellant that the business activity of the appellant was inherited by him 'Under the will of his father, late Shri Narain N. Bhojwani, who, during his life time, carried on the same activity. The appellant inherited activity under the will of his father and has not only continued the activity but expanded the activity quantitatively as well as qualitatively. It Is stated that during the previous year relevant to the assessment year under consideration the appellant has let out 59 flats. Of these, 55 flats were capital assets, whose license fees, the AO has charged to tax under the head Income from House Property'. It is stated that as on 31.3.2009, the cost incurred on fully furnished flats which are let out amounts to Rs,121.05 crores. The amount of security deposits received from licensees to whom flats were let out amount to Rs,47.29 crores. It is also submitted that in all the earlier assessments, completed under s. 143(3) of the Act, the license fees in respect of the activity carried on by the appellant had been charged to tax under the head Profits and gams of business or profession' Each of the Assessing Officers have examined the issue and have assessed the license fee under the head "Profits and gains of business or profession'. It is submitted that the A.Q. had made the following observations in the assessment made for A.Y. 2008-09 under s. 143(3) of the Act. "The assesses also carries on significant activities as a landlord. He gives on leave and licence basis which are fully furnished according to specifications of the licensee, it is not merely the Jims which are has out. The flats are provided with white-goods like refrigerator color televisions, washing machines, dish-washer, Jacuzzi, esc. At times, substantial changes are carried out at the request of the licensee. The flats are let out along with furniture, fixtures, facilities and amenities The buildings in which the premises lei on! are situated have a swimming pool, gymnasium, health-club, etc: These facilities are available to the licensees In addition to the above, various services are provided the licensees in the form of watch & yard, plumbing, electrical, carpenters for carrying out regular repair & maintenance work, valet parking, etc License fees m respect of this activity have regularly been assessed to tax under the head 'Income from Business'. 7.3 It is further submitted that in the assessments of total income of Narain N, Bhojwani, all completed under s. 143{3) of the Act; from whom the appellant had inherited the activity of leasing of the flats, the license fees received were consistently charged to tax under the head 'Profits and gains of Business or Profession', This ITA. No.331/M/2015 & 6807M/2014 CO. No. 134 & 41/M/2016 A.Y. 2009-10 &2010-11

was upon considering the nature of activity as also the volume and regularity thereof. It is brought to notice by the appellant that for assessment years 1996-97 to 1998-99, in connection with disallowance of interest under s, 36(l)(iii) of the Act, the question arose as to whether the activity carried on is business activity. The appellant states that the CIT(A}'s in Appeal No. C1T(A) XIX/IT/ROT-177/00-01 & 6/01-02 dtd. 03.04,2002 had decided the matter in favour of the appellant giving. elaborate reasons for holding that the activity of letting' out flats, on hire, constituted business. It is stated by the appellant that the Department has not preferred an appeal to the Tribunal against the said "orders of the CIT(A} [placed at pages 1 to 4 of paper book No. 1], 7 4 It is contended by the appellant that during the course of search at the premises of the appellant no incriminating material was found to indicate that the factual position as narrated in the earlier assessment orders/appellate orders was incorrect. It is submitted that no material was found even to remotely suggest that the head of income under which the license fees were being regularly charged to tax needs to be altered/re considered. It is stated that die same activity of hiring out fully furnished/refurbished flats, which is a composite activity, has been continued. In all the earlier assessments carried under s, 143(3), the orders that have teen passed by the respective A.Os., clearly indicate that the orders have been passed after examination of the factual position. According to the appellant, the present A,O. has not brought on record any material to indicate that during the relevant year under consideration, there is a change in the factual matrix of the activity carried, on by the appellant. It is also pointed out by the appellant that while it is agreed that res judicata is not applicable to Income Tax proceedings, the rule of consistency demands that a view taken, after examination of an issue, shall be followed in the_ subsequent years, unless there is a change in the factual position or in law. For- this proposition, the appellant has relied on several "judicial" pronouncements including the case of-'Radhasoami Satsang Vs. CIT 193 ITR 321 (SC), For the proposition that rental income should continue to be assessed under the head "Income from Business" unless there is, a material change in facts the appellant, relies upon - (i) CIT Vs. Neo Poly Pack P. Ltd. 245 ITR 492 (Delhi) ; (ii) Royal Business Centre P. Ltd. Vs. ITO (ITA No. 3901/MUM/2004){BCAJ April, 2006)

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(iii) Goel Builders 381 ITR 344 (Allahabad) (iv) DCIT Vs. Goel Erectors and Pipe Manufacturers P. Ltd, 45 DTR 473 (Lucknow} (Trib). " 7.5 The appellant summed up his argument stating that the activity under consideration is carried on by him regularly, systematically, in an organized manner with a set purpose and with a view to earn profits. The flats have been constructed with the view to let them out and complex commercial activities are carried out. "The activities relate to acquisition of land/entering into development agreement, purchasing TDR, getting plans approved, engaging contractors, architects etc., constructing buildings thereon, then furnishing the fact so constructed, providing several facilities and amenities which an ordinary landlord would not even think of. According to the appellant, the income from such a composite activity can never be taxed as Income from House Property', The appellant relies upon the decision of the Hon'ble Supreme Court in the case of Sultan Bros. P, Ltd. Vs. CIT 51 ITR 353 (SC). It is contended by the appellant that the decision of the Apex Court in the case of Shambhu Investments, which has been relied upon by the A.G. has not overruled the decision of the Apex Court in the case of Sultan Bros. P. Ltd. 7.6 Adverting to the assessment, order passed by the A.O., the appellant asserts that in the course of hearing of the case the appellant had, vide letter dated 24,07.2012, filed before the A.O. a detailed note explaining why the license fees need to be charged under the head "Income from Business" and why the ratio of the"decision” of the Apex Court in the case of Shambhu Investments P. Ltd. is not applicable to the facts of the appellant's case. The appellant points out that though the AO. has reproduced the said note in the assessment order (see pages 4, 5, 6 & 7 of the assessment order), the A.O- has only selectively reproduced the said note; important arguments and facts, in favour of the appellant contained in the said note a& per paragraphs 1,8, 1.9, 1.10, 2.1 to 2.3, 2.7 to 2,8, 3,6, 4.1 to 4-4, 5.1 to 5.2, 6 & 7 have not been reproduced in the assessment order. As regards the contention of the A.O. that no documentary evidence was seized during the course of search to substantiate the services rendered, the appellant submits that It is the discretion of the search party to the material and that the appellant has no say in the said matter, As regards the A.O's. finding that sec. applies only in primary letting out of land, machinery and furniture, the appellant submits that the very same

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argument was considered by the Constitution bench of the Apex Court in the case of Sultan Bros, and that the same did not find favour with the Apex Court. - 7.7 After considering the said contentions and submissions as made by the appellant, during the course of hearing of the appeal, as in the case of appellate proceedings for A.Ys, 2010-11 and 2011-12, the appellant was directed to produce the copies of agreements, documentary material, correspondence, if any, in order to substantiate his contention that complex commercial activities are being carried out. The appellant had in the course of appellate proceedings for A.Y. 2010-11 and 2011-12 produced material in order to substantiate its contention it was providing several facilities and amenities to the licensees which an ordinary landlord would not normally provide. Identical material has been filed for the impugned assessment year also by way of paper book No. 4 which has been placed on record. The material contained in the said paper book No. 4 is similar to that filed in A.Y.2010-11 and A,Y. 2011-12 except that the complaint book wherein the complaints have been recorded is for the relevant year under consideration. It is relevant to mention here that while adjudicating on the said ground in A,Y. 2010-11 and A.Y. 2011-12, the said material, along with the' complaint book has been remanded to the A.O. and the Remand Report of the A.O. had been obtained and had been considered. It would be pertinent to reproduce here the relevant paragraphs concerning the Remand Report of the A.O. as obtained while considering' the' identical ground of the appellate for A.Y. 2011-12 in 1TA No. CIT(A)-39/I.T. 124/13-14 dated 01.08.2014, as well as the Rejoinder of the appellant thereto. 7.8 It is also considered pertinent to reproduce here the findings/observations of the CIT(A) concerning the remand report and the rejoinder thereto, while deciding the appeal in respect of A.Y. 2011-12 which is quoted as under: - “I have very carefully considered the facts of the case, the assessment order, the submissions of the appellant, the contention in the remand report and the rejoinder of the appellant thereto as well as the arguments raised during the appellate proceedings and the ratio of various decisions on the subjects. The appellant carries on the activity was inherited by the appellant from his father, Shri Narain N. Bhojwani. From the various details/documents as well as agreements, and copies of correspondence with the licenses

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placed on record. It is discernable that the flats are given on leave and license basis after furnishing them to the specifications of the license. Factually some of the sample complaints are as follows:- 1. Internet not working 2. Water leaking in bathroom 3. AC in Driver’s room not working 4. Still waiting for maid’s mattress 5. Need pest control 6. Way took many ants in and around home 7. Working table, mattress for maid, thirteen trees have long being delayed. 8. Dishwasher needs service 9. Fridge not working.” 7.9. I have very carefully considered the facts in the case of the appellant, the assessment order and the submissions as made. From the facts .as gathered, it is evident that the appellant apart from giving on Leave and License basis flats which are fully furnished, also provides various facilities and amenities to the licensees in lace., the Schedule to the Agreement illustrates that furniture, Fixtures and the white goods are being provided. It, therefore, follows that the appellant not only lets out flats, but furnishes the same to the specifications of the licensee, provides furniture, provides white goods, maintains the white goods, carries out repays on the furniture, and provides various services as requested for and as required. In fact, these are not the services which would be provided by an ordinary Landlord. On a perusal of the complaint books as produced, of which a few sample complaints have been quoted above, it reveals that the licensees expect diverse nature of services from the appellant and the complaints range from security camera not working, air conditioner no working, ice dispenser in refrigerator not working, need a cage to catch a mouse, air conditioner in driver's room not working, slow internet speed, problem of ants, maid's , mattress required, switch loose contact, gas burner not working and so. A perusal of the P&L A/c, also indicates the expenditure incurred.' Undoubtedly, rendering these services involve maintaining a paraphernalia of architects, engineers, liftmen, gardener and so on. Moreover, the said activity has been expanding from year to year. Currently, the number of flats let out on Leave and License basis is 55. Funds have been borrowed for the said activity. In this context, the observations

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made by the CIT(A) in the appellate orders for A,Ys. 1996-97 to 1998-99 do merit consideration. The appellant has furnished a copy of the order of the CIT(A) XIX in-the case of Narain N, "Bhojwani for AT. 1996-97 dated 10.03.2000 in Appeal No. CIT(A) XXIX/JT. CIT.SR.9/IT.32 (placed in pages 110 to 121 of paper book no. 2. The observation of the CIT(A) in the said order is quoted below.: - “there is no dispute about the fact that the flats given by the appellant on leave and license basis are fully furnished, appellant provides wardrobe, beds curtains decorative lights, jaccuzi, etc. Other amenities made available are telephone connections, cooking gadgets cooking range, refrigerators, color television etc. It is thus obvious that the aforesaid activity of the appellant is not an activity of an ordinary landlord. It is clearly intended to earn profit and the activity of the appellant can by no stretch of imagination said flats. 7.10. While deciding the appeal for A.Ys. 1997-98 and 1998-99 vide order dated 03.04.2002 (placed at pages 1 to 4 paper book no. 1) the CIT(A) has decided the matter before him as quoted below: - “I have carefully considered the matter. I find myself in agreement with the view taken by the CIT(A) XXIX that the assessee’s activity of letting out flats on hire constituted business. The facts clearly indicate that this activity is being carried out regularly, systematically and in an organized manner with a view to earn profit. As already mentioned above, during the previous year relevant to assessment year 1997-98 fourteen flats had been given out on rent. In the immediately succeeding year four more flats were given out on hire making the total 18. During the course of assessment proceedings it was informed that in financial year 1998-98 twelve more flats were given out on hire taking the total to 30. All these flats were given out on hire appellant specifically for giving them out on hire. From the scale of the activity, the magnitude of investment made, the amount of rent received, the construction of flats specifically for letting out, completion/finishing of Khoka flats on entering into a hiring agreement the elaborate furnishing of flats to the requirements of the licensee leave no doubt that the nature of activity carried on by the appellant pertaining to hiring of flats is in the nature of ITA. No.331/M/2015 & 6807M/2014 CO. No. 134 & 41/M/2016 A.Y. 2009-10 &2010-11

business. The AO has himself accepted that hiring of flats with furnishings yields business income to the assessee. On the facts of this case, I am one with CIT(A) XXIX that the activity of the assessee in hiring out flats constitutes business.” 7.11 It is also noteworthy that while completing the regular assessment under s. 143(3) for the A.Y. 2008-09, the AO had made the following observations: - “The assessee also carries on significant activities as a landlord. He gives on leave and license basis flats which are fully furnished according to specifications of the licensee. It is not merely the flats which are let out. The flats are provided with while goods like refrigerators, color televisions, washing machines dis-washer, Jacuzzi, etc. At the licence 7.12. I have also perused the note which had been furnished before the AO as per letter dated 24.07.2012 in the course of assessment proceedings. The appellant had submitted that the AO has not reproduced para nos. 1.8, 1.9, 1.10, 2.1, 2.2, 2.3, 2.7, 2.8, 3.6, 4, 4.2, 4.3, 4.4, 5, 5.1, 6 & 7. I have perused the said note and it is found that those paragraphs which have not been reproduced by the AO contained the following arguments: - 2.1 Since inception the services we provided aid flats given on leave and license in the - manner narrated above. License fees have always been charged lo tax under the head 'income from Business'. 2 Since Assessment Year 2000-2001, license fees of the activity under consideration have been offered for tax and assessed under the head 'income from Business'., The assessments for Assessment Year 2001-02 onwards have been completed under section 143{3} of She Act. A perusal of these assessment: orders (including (the block assessment order passed u/s158BC of the Act r.w.s. 143(3) of the Act) reveals that the activity under consideration is stated by the Assessing Officers under the 'Nature of Business' The activity under consideration has. also been stated in the body of the assessment order und the AO has assessed she income byway of license fees under the head 'income from Business' Therefore, ail along a conscious view has been token that the license fees under consideration need to be charged and rightly been charged under the head 'income from Business'. 2.3 In foci, while assessing my total income for assessment year 2002-03, 2003-04 and 2004-05, the Assessing Officer has in ITA. No.331/M/2015 & 6807M/2014 CO. No. 134 & 41/M/2016 A.Y. 2009-10 &2010-11

a particular casein/here I had entered into two separate agreements with the licensee - for letting of properly and she other for provision of 'various facilities and amenities, regarded she fees received by me under both the agreements as chargeable to fax under the Head 'Income from whereas in my of income I had computed and offered for taxation of property under the head 'Income from House Properly' and the fees under the facilities and amenities agreement under the head 'Income from Business'. 2.7 It is note humbly submitted that it is a well-established legal proposition that in absence of any change sis the factual 'aspects the decision taken in the earlier fears consistently be allowed in the following cases it has been dearly laid down ' trial the rule of consistency demands that if there is no change in the factual position and the law the view taken in earlier years needs to be followed – 2.7.1 H.A. Shah & Co. V. CIT (30 ITR 618) (BOM) 2.7.2 Burmah Shell V. Chand (61 ITR 493)(BOM) 2.7.3 Radhasoami Satsang V CIT (193 ITR 321) (SC) 2.7.4 CIT Vs. ARJ Securities Printes (264 ITR 276) (Del) 2.7.5 CIT V Godavari Corporation Ltd. (156 ITR 835)(MP) 2.7.6 CIT V Bhilai Engg. Corporation Pvt. Ltd. (133 ITR 687)(MP) 2.7.7 Sardar Kehar Singh V. CIT (195 ITR 769) 2.8 . You will appreciate that in the case of Shambhu Investment it was nobody's case that in the earlier years similar income was charged to tax 'Income from Business'. The factual position in my case is different from the case before the Court in Shambhu investment. 7.13. T have also considered the above notes which had been filed before the A.O. as per the letter of the appellant dated 24/07/2012. From an appreciation of the entire facts on record, it is clear that the appellant is giving on Leave and License basis flats which arc furnished to the specifications of the licensee. From the complaint books and the copies of the various letters/e-mails/tax messages produced, it is also clear that appellant is also rendering several services to the licensees. From a reading of the copies of the request letters made by the licensees, it is observed that various kinds of requests are made such as to permit friends of children to attend birthday parties, permit licensees to have a party at the swimming pool of the ITA. No.331/M/2015 & 6807M/2014 CO. No. 134 & 41/M/2016 A.Y. 2009-10 &2010-11

building, and according to the appellant these arc requests which are not acceded to by an ordinary landlord. Thus, the license fees are a composite amount for the flat and for the furniture and also for the services/facilities provided. The flats are being constructed utilizing borrowed' funds. It, therefore, follows that the appellant is carrying out complex commercial activities with a view to earn profits, It is also an agreed fact that the license fees have all along been assessed under the head "Income from Business". Even in the case of the appellant's father, from whom he inherited the activity, the license fees were assessed under the head "Income from Business". Moreover, it has been pointed out by the appellant that the license fees, in respect of the flats held as capital assets, in the F.Y.04-05 were Rs.4.77 crs that has increased to Rs.33.46 crs in F.Y, 2008- 09 and Rs.38.57 crs. in F.Y. 2009-10. The corresponding no. of flats have increased from 17 to 55, It has also been pointed out that as on 31/03/2009 the borrowings of the appellant were Rs, 306.79 crs and the Cost of the flats let out is Rs.121.05 crs and the security deposit does not cover the cost of the flat let out. 7.14. The A.O. has relied upon the decision of the Supreme Court m the case of Shambhu Investments. I have carefully perused the said decision and it is found that in the said case, the Hon'ble Supreme Court was dealing with letting out of table apace. However, in the case of the appellant, the appellant is carrying out the composite letting out activity with borrowed funds on & regular basis, with volumes increasing after year, coupled with provisions of various services Moreover, since the very beginning the license fees as received in the case of the appellant was always been assessed to tax as "Income from Business''. Further, in Shambhu Investments, it is seen that the Apex Court has only approved the decision of the Calcutta High Court. Ongoing through the decision of the Calcutta High Court in the case of CIT vs. Shambhu Investments P. Ltd. 249.ITR 47, it is seen that the Hon'ble High Court has observed as under- Taking a sum total of she aforesaid decisions is clearly appears that merely because income is attached to any property convoy be the Sole factor for income from properly. What has to be seen is -what is the primary object of the assesses 'while exploiting the properly. If it is found applying such test that the main

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intention is for is for letting the property or portion thereof, the same must be considered. as rental income or income from property. In case it "is found that (he mam intention i-i'to exploit the immovable property by way of complex commercial activities, in that event it must be held as business income. " - 7,15 The Hon'ble Bombay High Court in the case of CIT Vs. National Storage P, Ltd, 1963 43 ITR 577 (Bom), while laying down the principles to be followed in determing a particular head under which the income is to be assessed observed as under:- "In cases where the income received is not from the letting of the tenement or from (he letting accompanied by incidental services or facilities, but the subject hired out is a complex one and the income .obtained is not So much because of the hare letting of the tenement bit! because of the facilities and services rendered, (he operations involved , ' ' in such letting of the property may be of the nature of business or trading operations find {he income derived be income not from exercise of property rights properly so-called so as 10 fail under s. 9 but income from operations of o trading nature of falling under 10 of the Act;" 7.16 The Calcutta Bench of the Tribunal in the case of PFH Mall and Retail Management LM, Vs. ITO 110 ITD 337 had held that if the main intention of letting out is found to be exploitation of the immovable property by way of commercial activities and not a simple letting out per se, then the resulting income must be held as business income. Further, the Bombay High Court in the case of Mohiddin Hotels P. Ltd. 284 ITR 229 had held as under :- "It needs no emphasis that when a specific head of charge provided far income from house property, rents or other income from the ownership of the house property has to be under his head and no other head. However, for an income from house property it should be covered by s. 22. By catena of decisions the Courts, time and again, have hat where the subject-matter that is let out given on license is not bare tenement bat L, a complex one like a. well-furnished paying guest establishment or sheds with infrastructural facilities, the income derived therefrom which t$ not separable ax income front letting out the building and the income letting out from the furniture, plant and machinery1, -etc., such composite income shall not be covered by the income from house property. " 7.17 Thus, the legal position is that, as culled out from the various decisions as cited above; if the main intention is to use the property as a business asset, through commercial exploitation, thereof, the income therefrom shall be assessed as business income. However, on the other hand, if the primary intention is to let out property

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simpliciter, the income is assessable as Income from House Property', Further, the A.O. has on page 20 of the assessment order stated that income can be considered under s. 56 only if primary letting is- of plant, machinery and furniture. The A.O. has stated ‘that sec, 56(2)(iii) contemplates that the prominent object should be letting of machinery, plant or furniture. However, this has been considered-by the Apex Court in the-case of sultan Bros, where it has been clarified that no consideration of binary or secondary letting arises in construing the section. The Apex Court had held that the provision contemplates the letting of machinery, and or furniture should be inseparable from, the letting of the buildings. In view of the said observations of the Apex Court, has to be held that the section does not contemplate any primary or secondary letting but that the letting of plant, machinery and furniture must be inseparable from the letting of buildings. The A.O has also stated that the furniture etc., has not been let. However, from the reading of a sample of the Leave and License agreement, it is seen that as per the agreement the licensed premises, being flat, are let out along with furniture, fixtures and fittings as stated in the Schedule. Also, it has been stated by the A, O. that no documentary evidence was view in the course of search nor was it produced before the A.O. to substantiate the factum of provision of various services. In the course of appellate proceedings, various documents/papers were produced before me to prove the provision of various services and it was the said documents that had been remanded to the A.O. In view of the facts as detailed above, in the present case, and also in view of the existing legal position on the subject, I am; of the considered that the income by way of. License fees in respect of the composite letting out activity-carried out by the appellant is chargeable to tax under the head “Income from Business”. 6. On appraisal of the above said finding, we noticed that the CIT(A) has considered the each and every aspects of the income earned by assessee on account of lessee of flats. The assessee has offered the income of licence fees as business income which has been accepted by department continuously for the period of w.e.f. 2001-02 to 2008-09. At the time of argument, the Ld. Representative of the assessee has placed reliance upon ITA. No.331/M/2015 & 6807M/2014 CO. No. 134 & 41/M/2016 A.Y. 2009-10 &2010-11

the decision i.e. H.A. Shah & Co. V. CIT (1955) (30 ITR 618)(Bom High Court), Burmah Shell Refineries Ltd. V. ITO (1966)(61 ITR 493)(Bom High Court), Radhasoami Satsang V. CIT (1991)(193 ITR 321) (SC), CIT Vs. ARJ Securities Printes (2003) 264 ITR 276) (Del High Court) & CIT V. Godavari Corporation Ltd. (1983)(156 ITR 835)(MP High Court) etc. The case of the assessee clearly falls within the principal of consistency which is not required to be changed unless the facts are distinguishable from earlier years, the objects in the present year is the same as in the earlier year also. It is also brought into noticed that in the scrutiny assessment u/s 143(3) of the Act for the A.Y. 2014-15, the AO has assessed the income of the assessee as business income. It is also observed that in the case of wife of assessee who is in the same business, the Hon’ble ITAT ‘J’ Bench in the case of Shibani S. Bhojwani V. DCIT (166 ITD 488)(TMum) has held that the income of the assessee is the income from business. Taking into account, all the facts and circumstances, we are of the view that the CIT(A) has rightly adjudicated the issue in question, therefore, the finding of the CIT(A) is not required to be disturbed at this appellate stage. Accordingly, we decide this issue in favour of the assessee against the revenue. ISSUE NO. 3:- 7. Under this issue the revenue has challenged the allowance of purchase from M/s. A.R. Enterprises and M/s. Archon Ready Mix Concrete Pvt. Ltd. Rs.47,93,324/-. Before going further, we deemed it necessary to advert the finding of the CIT(A) on record.: -

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9.1 Ground IV deals with disallowance of certain purchases. The appellant is aggrieved by the action of the A.O. in reducing a sum of Rs.47,93,324/- from the WIP of cost of projects for the captioned assessment year. The A.O. has stated that though notices under s. 133(6) were issued to the parties there has been no response; the notice on M/s. A.R, Enterprises was returned unserved whereas the notice on M/s. Archcon Readymix was served but no reply was received. 9.2 It is submitted by the appellant that in the course of the assessment proceedings, the appellant had filed before the A.O. detailed explanation and also voluminous material such as copy of ledger account, bills, details of work done, details of material received, delivery challans, copies of bank statements etc. to substantiate that the payments have been made by cheques. It is submitted that the A,O. has not found fault with any of the material /explanation furnished by the appellant. It is submitted by the appellant that for inaction on the part of the supplier the appellant cannot be penalized. On a consideration of the matter, it is seen that the A.O. has reduced the cost of purchases from the WIP because party had not responded though the summons were served and that in the case of the-other party the summons had been returned unserved but at the same time it is found that the A.O. has not doubted the entries as made in the books and it is a fact that cheque. payments had been made. Therefore, I am of the view that the action of. the A,O. in this regard, is not warranted. In view of the facts as narrated above, 1 am unable to uphold the action of the A.O. This ground of appeal is allowed.” 8. On appraisal of the above mentioned finding, we noticed that the CIT(A) has gone through the necessary material relevant to the purchases in disputes such as delivery challan, copies of bank statements, ledger account, bills, delivery challan etc. Non service of notice u/s 133(6) of the Act nowhere leads that the purchases is not genuine. The assessee has proved the purchase by adducing the sufficient material on record. In view of the said circumstances, we are of the view that the finding of the CIT(A) is quite justifiable and is ITA. No.331/M/2015 & 6807M/2014 CO. No. 134 & 41/M/2016 A.Y. 2009-10 &2010-11

not liable to be disturbed at this appellate stage. Hence this issue is decided in favour of the assessee against the revenue.

CO. NO. 134/M/2016:-

“ CROSS OBJECTION 1: IF LICENSE FEES ARE HELD TO BE_ASSESSABLE UNDER THE HEAP 'INCOME FROM HOUSE PROPERTY" AND NOT 'PROFITS AND GAINS OF BUSINESS OR PROFESSION AS HAS BEEN HELD BY THE LEARNED ClT(A)-39. MUMBA1, THEN RETURNED LOSS SHOULD NOT BE HELD TO BE TOTAL INCOME OF THE CROSS OBJECTOR MERELY BECAUSE IT IS LOWER THAN THE TOTAL INCOME AS COMPUTED BY THE ASSESSING OFFICER: 1.1 On the facts and circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) - 39 ("the CIT(A)") erred in dismissing the ground challenging the action of the Assessing Officer in assessing returned loss to be the total income merely because returned loss was lower than the loss as computed by the Assessing Officer. 1.2 The cross-objector craves leave to add to, alter, and/or amend all or any of the above cross-objections.” 11. The contention of the assessee is that if the income of the assessee is going to be held as income from house property, therefore, return loss should not be held to the total income of the cross objector merely because it is lower than the total income as computed by the AO. Since while deciding the appeal of the revenue, we have held that ITA. No.331/M/2015 & 6807M/2014 CO. No. 134 & 41/M/2016 A.Y. 2009-10 &2010-11

the income of the assessee is income from business and profession. Therefore, in the said circumstances, the cross-objection has become infructuous and nowhere required any adjudication. Accordingly, the cross-objection of the assessee is hereby dismissed.

ITA. NO. 6807/M/2014:- 12. The assessee has filed the present appeal against the order dated 01.08.2014 passed by the Commissioner of Income Tax (Appeals)-39, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2010-11. 13. The Revenue has raised the following grounds: - (1). Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in assessing the license fees under the head “Profits and gains of business or profession” and not “ Income from House Property. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in disallowing the purchases even thought the identity, genuineness & credit worthiness of the purchase parties were established.” 14. The facts of the present case are that quite similar to the facts of the case narrated above in ITA. No.331/M/2015. The matter of controversy is also the same. The decision of the case in ITA. No.331/M/2015 is quite applicable to the facts of the case also as mutatis and mutandis. Accordingly, we dismissed the appeal of revenue on similar lines.

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CO. NO. 80/M/2016:- 15. The assessee has filed the cross-objection against the appeal filed by the revenue Bearing in ITA. No.6807/M/2014. 16. The assessee has raised the following cross-objection. - “If long term capital gains have to be assessed, then deduction u/s 54 should be granted: 1.1 On the facts and circumstances of the case and in law, the Ld. CIT(A) 39 erred in dismissing the ground regarding granting of deduction u/s 54 of the Act. 1.2 The cross-objector craves leave to add to, alter, and/or amend all or any of the above cross-objections.” 17. The contention of the assessee is that if the income of the assessee is going to be held as income from house property, therefore, return loss should not be held to the total income of the cross objector merely because it is lower than the total income as computed by the AO. Since while deciding the appeal of the revenue, we have held that the income of the assessee is income from business and profession. Therefore, in the said circumstances, the cross-objection has become infructuous and nowhere required any adjudication. Accordingly, the cross-objection of the assessee is hereby dismissed. 17. In the result, appeal filed by the revenue is hereby dismissed and the cross-objection filed by the assessee is hereby ordered to be dismissed.

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Order pronounced in the open court on 12.10.2018. (SHAMIM YAHYA) (AMARJIT SINGH) लेखा सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai ददनांक Dated : 12.10.2018 Vijay

आदेश की प्रनिनिनि अग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त(अपील) / The CIT(A)- 4. आयकर आयुक्त / CIT 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुंबई / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file. आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //// उि/सहधिक िंजीकधर /(Dy./Asstt.